Recall: Recent Developments Regarding Pesticide Use on Cannabis in Colorado

Posted By Charles Feldmann || 28-Mar-2016

Use of pesticides (and/or herbicides and fungicides) in the legal cultivation
of cannabis in Colorado has received significant attention from state
and local regulators over the past year. The uncertainty and continuously-changing
landscape with regard to this issue have caused wide-spread concern within
the marijuana industry, and marijuana businesses should be aware of the
issues and risks associated with use of pesticides on Cannabis.

Pesticides are regulated at the federal level by the U.S. Environmental
Protection Agency (EPA). The EPA determines whether pesticide products
can be applied to different plants or crops, and it approves labeling
for each pesticide, indicating which plants or crops that particular pesticide
can legally be applied to, along with the allowed amount. However, because
Cannabis is a federally illegal Schedule I narcotic, the EPA has not approved
the use of any pesticide on Cannabis. Use of a pesticide inconsistent
with the approved product labeling is considered an “off-label”
use that is prohibited both federally and in Colorado by the Colorado
Pesticide Applicators’ Act (CPAA).

This dynamic placed the Colorado marijuana industry in a difficult situation,
with limited options for pest control, and no guidance at either the federal
or State level. The situation escalated in March 2015, when the Denver
Department of Environmental Health (DDEH) quarantined tens of thousands
of Cannabis plants based on pesticide concerns. In July 2015, the Colorado
legislature amended the CPAA to prohibit local governments from utilizing
their police power to “directly or indirectly regulate or prohibit
the application of pesticides…including in connection with the
cultivation of marijuana.” (C.R.S. § 35-10-112.5(3)(b))

In November 2015, Colorado Governor John Hickenlooper issued an Executive
Order that declared marijuana contaminated by an off-label pesticide as
a threat to public health and safety – effectively a “zero
tolerance” policy with regard to pesticides and Cannabis. Based
on this authority, both local (DDEH) and state (Colorado Department of
Revenue, Marijuana Enforcement Division) regulators have taken numerous
actions against companies that produce marijuana or utilize it in their
products. These actions include the following:

Administrative hold orders on products.

Orders to test product.

Orders to recall product.

Such orders can and have had crippling economic impacts on affected companies,
with even more serious potential actions such as destruction of product
and adverse impacts on marijuana licenses. There are several practical,
scientific and legal issues that are implicated by regulatory action of
this nature, including the following:

The scope of local regulators’ authority to indirectly regulate or
prohibit pesticide use under the guise of their police powers.

Deficiencies in the collection of samples of marijuana product for testing
that could cause contamination or inaccurate results.

Difficulties in testing marijuana products for pesticides.

There are currently no laboratories certified by the State to perform pesticide
testing of marijuana other than the Colorado Department of Agriculture’s
(CDA) lab.

Recently regulators have utilized a “composite testing” approach,
where samples from plants in multiple grow rooms are combined together
and tested as a single batch.

Testing marijuana products is a difficult scientific process, and additional
difficulties in the process exist for testing of products such as marijuana
concentrates.

The lack of realistic or consistent standards for pesticide use on Cannabis.

The “zero tolerance” policy established by the Governor’s
Executive Order creates an extremely difficult situation, as some pesticides
deemed a health and safety risk for Cannabis are allowed on other products,
and are therefore present in the environment. This creates the possibility
of “contamination” even when a grower does not utilize the
pesticide.

The DDEH has utilized differing standards, and, instead of employing the
Governor’s “zero tolerance” approach, it currently considers
Cannabis to be contaminated if the amount of pesticide residue exceeds
the lowest level allowed on any food product.

The lower “burden of proof” utilized by regulators in making
determinations of pesticide “contamination.”

Due to the expressed concerns over public health and safety, state and
local regulators have deemed marijuana products “contaminated”
with pesticides if they determine that it is simply “likely”
that the product contains unapproved pesticides, even if the product is
only “potentially” contaminated.

Recent developments provide Colorado marijuana businesses some guidance,
but they also create more cause for concern:

On March 25, 2016, the DDEH issued an Industry Bulletin, informing that
it is “transitioning to an enforcement approach for the marijuana
industry that is consistent with the other industries it regulates”
beginning on April 15, 2016. Under the DDEH’s newly-announced approach,
“marijuana products that are found to be potentially contaminated
with unapproved pesticide residues may be condemned by [DDEH] and ordered
destroyed.” In a significant shift from DDEH’s prior approach,
it will no longer utilize laboratory testing to monitor and evaluate batches
of potentially contaminated marijuana plant material for potential release.